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Full-Text Articles in Law
Judicial Notice: An Essay Concerning Human Misunderstanding, E.F. Robert
Judicial Notice: An Essay Concerning Human Misunderstanding, E.F. Robert
Washington Law Review
Articles limning the law pertaining to judicial notice are legion, and the footnotes which have been cite checked by generations of law review editors must number in the thousands. These articles assume that reason, properly employed, produces correct answers. They assume that disagreements can be resolved by reason, because it is self-evident that any problem, once identified, can be solved. Reflected here are the presuppositions of lawyers brought up in the Western legal tradition. What if one were to doubt that reason necessarily governed the behavior of lawyers? What if one doubted as well that all problems were susceptible to …
Loss Of Chance In Legal Malpractice, Polly A. Lord
Loss Of Chance In Legal Malpractice, Polly A. Lord
Washington Law Review
The current procedure for proving causation in legal malpractice, known as the trial-within-a-trial method, has dissatisfied courts. One unexplored alternative is the loss of chance doctrine. Compensable chances lost in legal malpractice are capable of definition, and methods for valuing those chances are available. Procedural ramifications of proving legal loss of chance and policy justifications for the doctrine support the incorporation of loss of chance into some legal malpractice litigation.
Labor Law Preemption: The Ninth Circuit Grants Malpractice Immunity To Union Attorneys—Peterson V. Kennedy, 771 F.2d 1244 (9th Cir. 1985), Tim Adams
Washington Law Review
This Note traces the development of federal preemption in labor law, examining Peterson as an illustration of the tendency of courts to broadly interpret federal statutory labor policy. In particular, this Note questions whether preemption in a legal malpractice action is appropriate, since professional negligence is not expressly or impliedly addressed under federal statute, and is not an essential part of the national labor policy expressed in legislative history. This Note concludes that federal law should not have preempted the state cause of action in Peterson. Finally, this Note suggests that recognition of state legal malpractice actions would be an …
Is Proof Of Statistical Significance Relevant?, D.H. Kaye
Is Proof Of Statistical Significance Relevant?, D.H. Kaye
Washington Law Review
This article examines the status of significance testing in litigation. Part I describes the case law on the need for the procedure. Part II explains the nature and terminology of hypothesis testing as used in court. Part III enumerates some of the problems that arise in these forensic applications, and Part IV pursues one such problem-that of selecting a "significance level." These sections show that explicit hypothesis testing is poorly suited for courtroom use. Statements as to what results are or are not "statistically significant" should be inadmissible. Part V suggests the use of other statistical tools and terms that …
The Federal Rules In State Courts: A Survey Of State Court Systems Of Civil Procedure, John B. Oakley, Arthur F. Coon
The Federal Rules In State Courts: A Survey Of State Court Systems Of Civil Procedure, John B. Oakley, Arthur F. Coon
Washington Law Review
In this article we present a new survey of the civil procedures of the fifty states and the District of Columbia. We seek to identify those jurisdictions that have systematically replicated the Federal Rules as the basis for practice before their civil courts. We also seek to identify states whose civil procedures are more loosely modeled on the Federal Rules, paying special attention to each state's procedural disparity from or conformity to the federal model for the pleading of a civil case.
The Constitutional Rights Of Excludable Aliens: History Provides A Refuge, Tamara J. Conrad
The Constitutional Rights Of Excludable Aliens: History Provides A Refuge, Tamara J. Conrad
Washington Law Review
This Comment will explore questions left unanswered by the Court in Jean v. Nelson. In examining the scope of the government's exclusion power and the constitutional position of the excludable alien, this Comment proposes a new framework for analyzing the government's authority over immigration law generally. The proposed framework consists of a two part test which is based on a reexamination of two early Supreme Court immigration decisions. The first prong of the test defines and limits the scope of the government's plenary power over immigration through a framework derived from Wong Wing v. United States." The second prong is …
Biological Deposits Necessary For Patent Protection: An Expansion Of Permissible Procedure—In Re Lundak, 773 F.2d 1216, 227 U.S.P.Q (Bna) 90 (Fed. Cir. 1985), Debra K. Leith
Washington Law Review
The standard for biological deposits necessary for compliance with the enablement provisions of the Patent Act of 1952 (codified at Title 35 U.S.C.) has been altered by the Federal Circuit Court of Appeals in In re Lundak. Before Lundak, patent applications dependent on the use of biological materials called for the deposit of a biological sample in an independent depository, out of the inventor's control, on or before the filing date. The Lundak decision now permits an inventor to retain control of the deposit during prosecution of the patent application, so long as the public is guaranteed access to the …
Discretionary Review Of Trial Court Decisions Under The Washington Rules Of Appellate Procedure, Geoffrey Crooks
Discretionary Review Of Trial Court Decisions Under The Washington Rules Of Appellate Procedure, Geoffrey Crooks
Washington Law Review
The Washington Rules of Appellate Procedure (RAP) became effective July 1, 1976. These rules completely replaced all prior rules governing appellate procedure. Among the most important changes from prior practice was the creation of discretionary review as one of only two methods for seeking review of trial court decisions. The former procedures for seeking review, particularly interlocutory review, "by extraordinary writs of review, certiorari, mandamus, prohibition, and other writs formerly considered necessary and proper to the complete exercise of appellate and revisory jurisdiction," were superseded. The drafters' comment explains that the intent behind this change was to simplify and clarify …
On The Limits Of "Grand Theory" In Comparative Law, William P. Alford
On The Limits Of "Grand Theory" In Comparative Law, William P. Alford
Washington Law Review
I am pleased that the American Association for the Comparative Study of Law has decided to focus upon the legal systems of East Asia this year, and flattered that Professor Dan Henderson, who has organized today's program, has asked me to speak about the question of "comparability" with respect to China. In so doing, Professor Henderson is clearly heeding Deng Xiaoping's message to turn to youth-albeit in this case, callow youth. Since he has been kind enough to do so, I hope that you will be equally kind in not blaming him for my remarks. This talk is dedicated to …
How Persistent Must The Persistent Objector Be?, David A. Colson
How Persistent Must The Persistent Objector Be?, David A. Colson
Washington Law Review
This essay has three parts. The first part discusses several ways states invoke international law which provide the opportunity for a persistent objector to make its views known. The second part, following the second part of Ted Stein's essay, addresses the formation of customary law and the legal relationships between States and the means by which objections to the formation of such law may be made. The third part suggests that any answer to the question of "how persistent must the persistent objector be" must take into account the context in which the principle is applied.
Ted L. Stein On The Iran-U.S. Claims Tribunal—Scholarship Par Excellence, Mark B. Feldman
Ted L. Stein On The Iran-U.S. Claims Tribunal—Scholarship Par Excellence, Mark B. Feldman
Washington Law Review
I am fortunate to have known Ted Stein as professional colleague and friend during his years at the Office of the Legal Adviser, where he was one of the brightest of a very bright group of young staff attorneys. His analysis of legal problems relating to the conduct of United States foreign relations was always original and helpful, and his contribution was beyond his years. We have been deprived of a great deal by Ted's untimely death, but the work he was able to accomplish in so short a time was extraordinary. In the pages that follow, I would like …
Rights For Canadian Members Of International Unions Under The (U.S.) Labor-Management Reporting And Disclosure Act, Alan Hyde
Washington Law Review
This article addresses the question of whether the short answer makes sense; whether, in other words, Canadian members of international unions based in the United States acquire any rights under the Labor-Management Reporting and Disclosure Act (LMRDA) which they can enforce in the courts of the United States. It concludes that Canadian members of United States-based international unions may sue their internationals in United States courts for violation of the LMRDA.
"Generally Accepted" International Rules, Louis B. Sohn
"Generally Accepted" International Rules, Louis B. Sohn
Washington Law Review
It is universally agreed that "usages generally accepted as expressing principles of law" constitute one of the main sources of international law. It is the purpose of this paper to investigate how a rule becomes "generally accepted" as a part of customary international law. There are several different ways in which international law deals with this subject. Ordinarily, a rule is considered generally accepted when it is supported by constant practice of states acting on the conviction that the practice is obligatory. Alternatively, an international agreement sometimes incorporates certain rules as ones considered to be generally accepted; or an agreement …
Uniformity And Diversity In A Divided-Power System: The United States' Experience, Eric Stein
Uniformity And Diversity In A Divided-Power System: The United States' Experience, Eric Stein
Washington Law Review
The modest purpose of this paper is to inquire, in a specific contemporary context, why, by whom, and through what process a uniform rule is accepted or imposed in place of diverse rules. The first, methodological part of the paper offers a pattern for an analysis; the second part applies the pattern and illustrates the working of the process in the field of family law. I have chosen family law because in that field there has traditionally been concern for regional differences and because there has been an instructive interplay between regional and central powers. It may not come as …
International Agreements And The Development Of Customary International Law, Jonathan I. Charney
International Agreements And The Development Of Customary International Law, Jonathan I. Charney
Washington Law Review
It has never been clear, however, which circumstances of negotiation and conclusion of international agreements contribute to new rules of customary law. The issues can be appreciated if one goes beyond generalities and explores the relationship of specific agreements to customary law. Such an examination has been facilitated by the American Law Institute's Restatement of the Foreign Relations Law of the United States (Revised) which contains a contemporary review of a wide range of public and private international law topics. This Restatement represents the views of some of the best international law experts of the United States and abroad. It …
The Determination Of Title To Submerged Lands On Indian Reservation, Rick Best
The Determination Of Title To Submerged Lands On Indian Reservation, Rick Best
Washington Law Review
The treatment of submerged lands within Indian reservations provides a classic example of the Indian rights gap. Two possible owners may claim such lands under navigable water: the tribe or one of the several states. Substantial legal and economic significance attaches to ownership. The title may determine fishing rights as well as potentially lucrative mineral rights to gas and oil deposits. When a river is rerouted, the uncovered land may become a valuable recreational or commercial waterfront. Title can also determine criminal jurisdiction for acts taking place on the water. States rely on the equal footing doctrine to claim title …
Reaccepting The Compulsory Jurisdiction Of The International Court Of Justice: A Proposal For A New United States Declaration, Douglas J. Ende
Reaccepting The Compulsory Jurisdiction Of The International Court Of Justice: A Proposal For A New United States Declaration, Douglas J. Ende
Washington Law Review
This Comment analyzes the administration's cessation of its obligations under the ICJ's compulsory jurisdiction and concludes that the decision was unwarranted in failing to recognize valid alternatives which answer objections to the Court's alleged politicization. An examination of the role of compulsory jurisdiction in ICJ adjudication, United States practice under compulsory jursidiction, and the bases for the administration's decision provide an analytic foundation for the evaluation of alternatives to outright termination. Those alternatives are analyzed in light of the administration's specific grievances. The Comment recommends reconsideration of the decision and adoption of procedural innovations in the form of proposed "reservations" …
Admission Of Evidence Of Other Misconduct In Washington To Prove Intent Or Absence Of Mistake Or Accident: The Logical Inconsistencies Of Evidence Rule 404(B), Eric D. Lansverk
Admission Of Evidence Of Other Misconduct In Washington To Prove Intent Or Absence Of Mistake Or Accident: The Logical Inconsistencies Of Evidence Rule 404(B), Eric D. Lansverk
Washington Law Review
In Washington, the introduction of evidence of other misconduct to show intent or absence of mistake or accident has proven particularly troublesome. Washington courts have made no attempt to delineate the differences between proof of intent and proof of absence of mistake or accident. Nor have they satisfactorily distinguished either of the proofs from a mere showing of propensity to commit crime. By failing to make these distinctions, the courts undermine the letter and spirit of ER 404(b). The lack of clear standards to guide application of the intent and absence of mistake or accident aspects of ER 404(b) leaves …
Federal Court Interpretation Of The Washington Obscenity Statute—Brockett V. Spokane Arcades, Inc., 105 S. Ct. 2794 (1985), Amy L. Swingen
Federal Court Interpretation Of The Washington Obscenity Statute—Brockett V. Spokane Arcades, Inc., 105 S. Ct. 2794 (1985), Amy L. Swingen
Washington Law Review
A recent series of federal court decisions regarding an obscenity statute in the State of Washington provides an example of the context in which the state-federal conflict arises and the impact of the use of the various alternatives. In Brockett v. Spokane Arcades, Inc., the federal district court, the Ninth Circuit, and the Supreme Court ignored the efficient procedural solution of certification, and rejected the more time-consuming abstention as well. The question before the court involved the definition of obscenity. By refusing to allow the Washington Supreme Court to interpret the word "lust" for purposes of the state's newly enacted …
The International Law Commission's Study Of International Liability For Nonprohibited Acts As It Relates To Developing States, Daniel Barstow Magraw
The International Law Commission's Study Of International Liability For Nonprohibited Acts As It Relates To Developing States, Daniel Barstow Magraw
Washington Law Review
The International Law Commission of the United Nations is engaged in studying a topic that at least some have argued should encompass aspects of many or all of the issues mentioned above. That topic is titled "International Liability for Injurious Consequences Arising out of Acts Not Prohibited by International Law" (hereinafter "international liability"). Part I of this Article briefly describes the Commission's current approach to international liability. Part II examines that approach in detail as it relates to developing states.
Discoverability Of An Insured's Post-Accident Statement To Insurer In Washington—Heidebrink V. Moriwaki, 104 Wn. 2d 392, 706 P.2d 212 (1985), Ronald S. Dinning
Discoverability Of An Insured's Post-Accident Statement To Insurer In Washington—Heidebrink V. Moriwaki, 104 Wn. 2d 392, 706 P.2d 212 (1985), Ronald S. Dinning
Washington Law Review
Courts have struggled, under both a privilege theory and pure work product doctrine analysis, with the difficulties of reconciling a broad discovery policy with the needs of an insured for confidentiality. Facing this difficulty, the Heidebrink court blurred the distinctions between privilege and work product immunity, potentially impeding the application of either. The Heidebrink court could have focused on the events triggering the insurance investigation, rather than on the insured-insurer relationship. This focus would provide meaningful guidance to lower courts, and would avoid undesirable consequences stemming from integration of privilege considerations with work product analysis.
Eurocacy And Distrust: Some Questions Concerning The Role Of The European Court Of Justice In The Protection Of Fundamental Human Rights Within The Legal Order Of The European Communities, Joseph H.H. Weiler
Washington Law Review
Protection of individual rights has been a central feature of much of the judicial review by supreme courts in Western countries in the postwar era. Concepts such as individual dignity and privacy, as well as more classical notions of liberty and equality before the law, have been the standard repositories of constitutional interpretation by courts reviewing governmental legislation and administrative action. The concept and practice of judicial review have penetrated, albeit in a limited way, even legal cultures which for long have resisted, such as Britain and France. I Indeed, judicial review in general and the protection of individual rights …
Labor Costs And Midterm Work Relocation: Unfair Labor Practice Or Breach Of Contract?—International Union, United Automobile Workers V. National Labor Relations Board, 765 F.2d 175 (D.C. Cir. 1985), Bryan E. Lee
Washington Law Review
In International Union, United Automobile Workers v. National Labor Relations Board (UAW v. NLRB), the United States Court of Appeals for the District of Columbia Circuit held that it was not an unfair labor practice under the National Labor Relations Act (NLRA) when an employer threatened to relocate certain operations from a union plant to a nonunion plant in order to coerce the union into making midterm wage concessions. Nor was it an unfair labor practice when the employer then carried out the threat to relocate after the union refused to make the wage concessions. The D.C. Circuit decision affirmed …
Reflections On The Role Of The International Court Of Justice, Stephen M. Schwebel
Reflections On The Role Of The International Court Of Justice, Stephen M. Schwebel
Washington Law Review
I would like this evening to share with you some reflections on the role of the International Court of Justice in an unjust world. You will appreciate that, while I shall try to speak the truth as I see it, I am not able to speak the whole truth; not only because I do not know it, but because of the constraints of my position and the confidentiality of aspects of the work of the Court. In particular, I shall not speak about matters which are sub judice, either in these remarks or in the answers to questions which some …
A Reprise Of Warrants, Probable Cause, And Articulable Suspicion In Immigration Enforcement—Laduke V. Nelson, 762 F.2d 1318 (9th Cir. 1985), Barbara J. Selberg
A Reprise Of Warrants, Probable Cause, And Articulable Suspicion In Immigration Enforcement—Laduke V. Nelson, 762 F.2d 1318 (9th Cir. 1985), Barbara J. Selberg
Washington Law Review
This Note analyzes LaDuke v. Nelson, in which the Ninth Circuit held that the farm and ranch check practices of the INS violated the fourth amendment in that seizures were made without warrants, probable cause, or articulable suspicion of illegal alienage. The court's alternative holding criticized the INS for conducting searches without warrants, probable cause, or effective consent. For LaDuke to stand it must be carefully distinguished from the Supreme Court's most recent fourth amendment decisions, which juxtapose the individual's interest in privacy and security with the government's interest in effective law enforcement. LaDuke should stand because it provides an …
The Environmental Right To Habitat Protection: A Sohappy Solution—United States V. Washington, 759 F.2d 1353 9th Cir.), Cert. Denied, 106 S. Ct. 407 (1985), Judith W. Constans
The Environmental Right To Habitat Protection: A Sohappy Solution—United States V. Washington, 759 F.2d 1353 9th Cir.), Cert. Denied, 106 S. Ct. 407 (1985), Judith W. Constans
Washington Law Review
This Note indicates that both the district court's use of declaratory relief on the hatchery fish issue and the merits of its declaration on the environmental issue were entitled to affirmance. An analysis of the procedural history of the case suggests that the court should have decided the environmental issue. An analysis of the right to habitat protection reveals that habitat protection should be regarded as an implied term of the treaty right to take fish and that measuring the scope of the right by the tribes' moderate living needs fulfills the purpose of the treaty fishing clause. The measure …
Informed Consent In The Prescription Drug Context: The Special Case, Gerald F. Tietz
Informed Consent In The Prescription Drug Context: The Special Case, Gerald F. Tietz
Washington Law Review
Evaluation of the general doctrine of informed consent is the starting point for determining whether, and how, the doctrine might apply to prescription drug therapy. This article demonstrates that, unlike the decision to undergo surgery (the more typical informed consent situation), the process of prescribing drugs contains numerous considerations, many of which are inherent in and unique to prescription drug therapy. The presence of these considerations dictates that courts accord even greater significance to the need for patient participation in prescription drug therapy than that accorded in the more typical consent to surgery situation. Moreover, in light of the many …
Artificial Nutrition And The Terminally Ill: How Should Washington Decide?, Jacquelyn A. Beatty
Artificial Nutrition And The Terminally Ill: How Should Washington Decide?, Jacquelyn A. Beatty
Washington Law Review
This Comment demonstrates that artificial nutrition and hydration are life-sustaining treatments which all patients have a right to forego under Washington's common law, state constitution, and NDA. Countervailing state interests do not compel a contrary result. Moreover, artificial nutrition and hydration do not require the preclusion of surrogate decisionmaking already recognized by Washington in the life-sustaining treatment context. However, since current judicial guidelines for surrogate-made decisions are inadequate, this Comment concludes by proposing substantive guidelines for such decisions.
The Appearance Of Fairness Doctrine: A Conflict In Values, Carolyn M. Van Noy
The Appearance Of Fairness Doctrine: A Conflict In Values, Carolyn M. Van Noy
Washington Law Review
This Comment compares the appearance of fairness doctrine with the Washington State Code of Judicial Conduct and shows that abandoning the doctrine and substituting the Code and due process would not resolve the conflict between independence and accountability, but would further exacerbate it. Rather, the appearance of fairness doctrine, modified by the 1982 appearance of fairness statute, is a standard that accommodates the conflict inherent in any bias standard applied to elected and appointed officials. The legislative modifications, however, fall short of the need for a clearly defined doctrine that provides guidance and certainty for the decisionmakers and the courts. …
Ensuring The Credibility Of United States Food Aid: Proposals For Insulating The Food Security Wheat Reserve From Economic Influences, Ann Marie Neugebauer
Ensuring The Credibility Of United States Food Aid: Proposals For Insulating The Food Security Wheat Reserve From Economic Influences, Ann Marie Neugebauer
Washington Law Review
This Comment proposes and evaluates two amendments to the legislation governing the emergency reserve that would help insulate the reserve from the market. Insulation can be accomplished by creating and protecting certain contract rights of the farmer/vendor against the United States government. The farmer could enforce those rights if the government released the reserve for purposes other than urgent humanitarian food aid. The Appendix contains proposed legislation which creates and protects such remedies. These proposals should contribute positively to public policy debate over methods of ensuring world food security. However, this Comment considers only the legal viability, not the political …